Was Lincoln Right?

Photo credit: Gary Corbin.

In December of 1860, the state of South Carolina held a special convention to answer a monumental question: should South Carolina secede from the Union, and remove itself from its brethren, becoming a fully independent nation? On December 20 it answered in the affirmative. Within two months, six other states—Mississippi, Florida, Alabama, Georgia, Louisiana, Texas—all voted to follow South Carolina, and claimed to secede. The newly-elected President of the United States, Abraham Lincoln, refused to acknowledge the legality of secession, and said so in his Inaugural Address. In fact, Lincoln was ready to use armed force if necessary to deny these states’ assertion to unilaterally leave the Union.

And so this begs the $620,000 $750,000 question:

Was Abraham Lincoln right?

This constitutional question is at the heart of the matter, the essence of the controversy—the “nub”, as Lincoln himself might have put it. Because if Lincoln was wrong, then these states (and the four that followed after the firing on Ft. Sumter and formed the Confederate States of America) did have a right to leave, and Lincoln began a war that would take the lives of over 620,000 750,000 Americans, and cost the country over a billion dollars in treasure. While it is true that one result of this war was the destruction of American slavery, which by some would have morally justified the war, morals don’t count much in constitutional law. If Southerners were right, then Lincoln violated the rights of the states, and no well-meaning result can justify this sort of “tyranny.” If.

But fortunately for Lincoln, he was not wrong—his reading of the Constitution was actually pretty right-on: the Union was (and is) perpetual.

To fully understand this argument (which neo-Confederates seem to either not understand, or willfully ignore or misrepresent), we have to spend some time with the Founders. What was their intent? And, moreover, how did they express this intent?

The People Ordain the Union

In some ways, we need look no further than the preamble, “We, the People…establish and ordain this Constitution.” [My emphasis] This phrase is usually portrayed as mere rhetorical flourish, but it is not. As Constitutional scholar Akhil Reed Amar has pointed out in his indispensable book, The American Constitution: a Biography, Article VII (the last words of the Constitution) explains what “We the People” is supposed to mean. It states:

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

First of all, it’s vital to realize that the Founders were completely fed up with their first revolutionary government, the weak Articles of Confederation, established during the war for independence in 1777. Because the states entered the Confederation with their perfect sovereignty intact, the Confederation Congress was by definition a creature of the states. (To show how dysfunctional it was, the states themselves didn’t get around to actually ratifying the Articles until 1781!) This Congress operated more like the United Nations than a national government. While the states were fighting Great Britain, this loose league was perhaps enough (although only barely—there were times during the Revolution when the weakness of the Confederation was a serious liability); but in the five or so years after the fighting ceased, the Confederation Congress proved unequal to the task of managing a continental union. With no power to tax in order to pay off the massive debt incurred by the states and Congress to fight the Revolution, and with no power to compel states to obey the rules they themselves agreed to follow, the Congress was not much more than a paper tiger. The Framers in Philadelphia, then, determined to do much more. They most emphatically did not want another creature of the states—they wanted a truly federal government in which the states’ sovereignty, while still intact, was subordinated to a new vestment of sovereignty.

And so the “bookends” (in Amar’s words) of the Constitution: the first words of the Preamble and last words in Article VII. According to this last Article, “We the People” would assemble in special ratification conventions in the form of elected delegates; would debate the merits of the new Constitution; and then vote, up or down, as to join this Union or not. It was entirely voluntary. Again, these conventions were explicitly not the states themselves—the Founders wanted no creature of the states. And of course, it’s hard to see state legislatures voting in favor of a document that would reduce their power. If New York was a fully independent nation-state (and in 1787 it was), why would its government willingly subordinate itself to some new-fangled theorem written over the summer? If the Founders had left it to the state legislatures, those legislatures would have rejected the document out of hand.

Moreover, these special ratifying conventions themselves represented one of the most democratic events in the history of western civilization up until that time. They were composed of delegates elected by The People of each state (again, not the state itself). In order to ensure the broadest possible participation of voters in order to select delegates, the states liberalized voting rules by getting rid of the property qualifications. This was a special one-time-only thing (at least until the 1830s). And in addition, five states in the North allowed blacks the right to vote.

These elections, then, were as democratic as the 18th century mindset would allow. Each set of delegates debated, and then voted, state by state, thus ensuring that the states would indeed retain a good measure of sovereignty—that this new government would not be a national government, obliterating the states, but rather a federal government, where there would be two sovereign entities: states and the feds. (Madison explains this in Federalist #39.) Article VII then guaranteed that the preamble’s “We the People” was not mere rhetorical flourish. Rather it proved that We the People did indeed ordain the new Constitution.

The last event that guarantees that we know the Founders intended a perpetual Union is an incident that took place at the New York ratifying convention. There, the Anti-Federalists (those who opposed the new Constitution) were winning the argument. In front of full galleries day after day, week after week in the summer of 1788, both pro-Constitution (or Federalists) and anti-Constitution delegates went back and forth, but it became clear that the anti-Federalists had the votes to defeat it. But in the midst of this debate came news that New Hampshire had ratified. That made nine states ratifying, the Magic Number to establish the Constitution and have it go into effect. Then came news of Virginia’s ratification. Still, New Yorkers argued for weeks more.

Finally, the Anti-Federalists offered Alexander Hamilton and the other Federalist delegates an olive branch: the Anti-Feds would agree to vote to ratify if the first congress of the new government would pass certain amendments right away; but if the new congress did not, then New York reserved the right to leave the new union. This compromise must have been attractive to Hamilton, since he desperately wanted New York to join the union. And think about it for a minute: at that moment, it was clear that there would be a new United States of America, with a president, a congress, and all—and New York would not be part of it! It would suddenly be a small independent nation sitting astride yet outside a huge, new independent nation. But despite this temptation, Hamilton turned them down—he had in his pocket a letter from James Madison, the architect of the Constitution, who had been verbally jousting with Patrick Henry in Virginia in that state’s convention. Madison well knew of this attempt at compromise, and he rejected such a notion of future secession, and urged Hamilton to resist just such overtures. In his letter he wrote that “The Constitution requires an adoption in toto, and for ever.” [My emphasis]

Even Patrick “Give me liberty or give me death” Henry, a delegate in the Virginia ratification convention who opposed the Constitution, understood exactly what was afoot. He clearly saw that the new Constitution would require a diminishment of Virginia’s sovereignty. He said in convention:

[W]ho authorised them to speak the language of, We, the People, instead of We, the States? States are the characteristics, and the soul of a confederation. If the States be not the agents of this compact, it must be one great consolidated National Government of the people of all the States…. Have they said, we the States? Have they made a proposal of a compact between States? If they had, this would be a confederation: It is otherwise most clearly a consolidated government. The question turns, Sir, on that poor little thing—the expression, We, the people, instead of the States of America.

Henry knew full well what the Federalists intended, and he didn’t like it; but in the end he also saw he couldn’t stop it.

The Text of a Federal Union

Let’s move to more text of the Constitution. It is true that there is no explicit prohibition on secession; but then again, there is neither an explicit statement allowing secession. Fortunately, the Constitution has much implicit content—it must be implied, otherwise the document would be unintelligible.

Need more proof from the text that the Union is indissoluble? Let’s look at the so-called “supremacy clause” of Article VI, Clause 2. It’s pretty much the clincher:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [My emphasis]

But wait, there’s more! Here’s Clause 3 of Article VI:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. [My emphasis]

If state sovereignty trumped federal sovereignty, as neo-Confederates argue, then why would state officers have to swear an oath (or affirmation) to support the federal Constitution? The answer is they wouldn’t. But state sovereignty is subordinate to the federal government. And so, these two Article VI clauses pretty much seal the deal.

Does federal supremacy mean no state can unilaterally secede? Of course; but if one is still in doubt, the ultra-democratic mechanism of ratification most certainly proves the intent of the Founders.

Legally Sealing the Deal

If one needs another piece of evidence after the ratification, one can always look to Chief Justice John Marshall. In Gibbons v Ogden in 1824 Marshal wrote:

[R]eference has been made to the political situation of these states, anterior to its formation. It has been said that they were sovereign, were completely independent, and were connected with each other only by a league. This is true. But, when these allied sovereigns converted their league into a government, when they converted their congress of ambassadors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature, empowered to enact laws on the most interesting subjects, the whole character in which the states appear underwent a change, the extent of which must be determined by a fair consideration of the instrument by which that change was effected.

So, whatever one may believe of the evidence I’ve presented about the Constitution at its founding, the Supreme Court some 30-odd years after the founding ruled beyond doubt that the Union was perpetual and indivisible—that the individual states had surrendered their full independence when they, or rather their people, ordained and established the Constitution.

The growth of slavery and Southern nationalism certainly challenged this notion of perpetual Union, but the Union–and the logic of federalism–was equal to them. We will deal with those challenges later, in another post.

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About Christopher Shelley

Christopher Shelley teaches American history and American Indian history at Portland Community College. He is fond of border collies, and bleeds Dodger-blue.
Any and all opinions expressed here are those of the expressors themselves, and in no way represent the views of Portland Community College.

Thank you, Al. I’m reading your case law blog entry as we speak, which I’m enjoying. I’m also eating up all the very cool video presentations you provide. Being out here in Oregon, we’re pretty isolated from the face-to-face, up-close scholarship of the war. (Lewis & Clark is a whole ‘nuther deal.)

I am new to this blog thing, but I’m hoping to bring some notions from my Constitutional history (and Indian history) background to this fight (and as you know it is most certainly a fight). When you write “I won’t get into the arguments specifically pertaining to secession that were thrown about by constitutional theorists and others,” that’s exactly the niche I’m hoping to fill.

For me, the Civil War is as much a Constitutional Revolution as anything else. I believe We, the People came out of the war “a more perfect Union” than We were going in. I hope I can show that here.

The problem I see with the constitutional theorists is that it turns out there’s a bunch of them. Rawle, Kent, Story, and Taylor are only the most famous of them. It seemed to me that it was opening a huge can of worms to try to address them all, especially since most of them disagree at various points. I like your use of Amar. Cass Sunstein is another contemporary scholar who has written on secession.

I take your point about the difference between Constitutional scholars and historians, but I also think they can compliment each other. For me, this stuff is still happening–like Faulkner said, “it’s not even the past.” In grad school my advisor put a copy of Amar in my hands, and I’ve never looked back. Amar’s vision is so integrated, so complete; and it sees the Constitution almost as an “arc” that describes the evolution of the Republic. I have a soft spot for intellectual history, and Amar satisfies that as good as anyone.

I enjoy reading Amar as well. Not only do I have a couple of his books, but I also have some papers he wrote. When you get right down to it, though, the theorists are offering their interpretation, and no matter how brilliant they are, their interpretation doesn’t have the force of law, whereas Supreme Court rulings, and to a certain extent the opinions of Attorneys-general and Presidents in the performance of their official duties, do. That coupled with the fact that for every theorist on one side of a question you can find a theorist on the other side led me away from even trying to tackle making sense of that jungle. I’m looking forward to your bringing some order to it.

Terrifically detailed argument. You’ve sighted again and again the trial and test of entering into federal government. Astonishing how the rights of African Americans saw some brief realization during those special elections. Great piece, keep it coming 🙂

Hello Mr. Shelley,
When I asked Mr. Mackey how he could possibly ignore the fact that the plain language of Article VII explicitly, directly, unequivocally, and expressly declares that it was the states that ratified the constitution, he answered he simply didn’t know why the Committtee on Style used that language. With all due respect to Mr. Mackey, that answer is exiguous, and it will not meet the moment. So I will ask you the very same question. Here is Article VII

“The Ratification of the Conventions of NINE STATES, shall be sufficient for the Establishment of this Constitution BETWEEN THE STATES so ratifying the Same”

Clearly, and most emphatically, under Article VII it was the states who ratified the constitution. There is simply no way around it. It is a fact. So why, exactly, do you feel at liberty to read Article VII as if it reads:

“The Ratification by the majority of the people through a National Convention, shall be sufficient for the Establishment of this Constitution between the people so ratifying the Same”

Please note that in the entirety of Article VII, the word “people” is never mentioned and nowhere to be found. Not even mentioned.

Lastly, if you are free to change the language of Article VII at your pleasure, am I similarly free to change language in the constitution? May I, for example, change Article IV, section II from:

“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States”

to

“The Citizens of each State shall under no circumstances be entitled to all Privileges and Immunities of Citizens in the several States.

The ratification of the Constitution had to be organized in some way, and since it proposed a profound reorganization of the states’ relationship to the new federal government, it had to go to the states. Also, only the states had the organizational framework to be able to call for elections and conventions. So, both as a procedural matter and as a practical matter, it only made sense for the Philadelphia Convention to request that Congress send the new document to the states.

More to your point, the text reads: “Ratification of the Conventions of nine States…” not “Ratification of the states”. [My emphasis] The ratification is taking place in the conventions of the states. These conventions, as already mentioned, we’re convened by “We, the People” in the ultra-democratic elections each state held, and therefore represented The People, albeit in a state-by-state fashion. And so, it a very technical way, the people of each state were being asked, state-by-state, to ratify this new government that would bind the Union together indissolubly.

Thanks for the reply Mr. Shelley. And indeed, the text is quite explicit isn’t it? And the text says “Conventions of the STATES”, not, I repeat NOT, “Conventions of the People at-Large”. And it follows by then stating that the constitution is binding only “BETWEEN THE STATES SO RATIFYING”, and NOT “between the people” so ratifying. Another source who firmly supports the obvious fact that the it was the states who ratified the constitution is Yale Law School Professor Akhil Amar. In his paper “Abraham Lincoln and The American Union”, Amar summarizes the ratification process this way:

“…Thus, the Constitution went into effect only AMONG THE STATES THAT CHOSE TO RATIFY…”

Please note the language “AMONG THE STATES”. Please also note the absence of the language “among the people”.

And indissoluble? Never. Madison himself openly and fully acknowledged the distinct possibility of political disharmony and therefore the potential recourse to secession and dissolution. In Federalist 45 he writes:

“…Were the Union itself inconsistent with the public happiness, it would be, ABOLISH THE UNION….”

I respectfully submit that Civil War is the absolute apotheosis of public unhappiness.

PS- You write:

“…Also, only the states had the organizational framework to be able to call for elections and conventions…”

Which means, of course, that the ratification of the constitution could not possibly have been executed by the people at-large on a national basis. It was the states who ratified. As in “BETWEEN THE STATES SO RATIFYING”

Well, in the first case, you and I are emphasizing different words and getting different meanings–you prefer states and I prefer conventions. But you are missing a very big piece here. The People were not being asked to get rid of their states. But nor were they being asked to join their states under a new compact. If that were the case, the Founders would have just sent the Constitution to the state legislatures and have done with it. The People were being asked to engage in a new system, where their sovereignty would be explicitly vested into two different governments. This is a very strange theory that Madison came up with—it’s a theory that Calhoun rejected, certainly—but it was the only way to have both state and federal governments exist as sovereign powers. The People were not being asked to dissolve their states, but they were being asked as citizens of their respective states to alter their old relationship to that state–to vest sovereignty in another government. That could only be done state by state.

And again, if the meaning seems muddy to us today, it was not to Patrick Henry, who fully and completely understood what it meant. (He didn’t like it, but after he lost he supported it.)

However, the rest of your post does a whole lotta cherry-picking. For example, your use of Amar is too selective to be useful. Professor Amar believes the Union under the Constitution indissoluble. It is primarily his work that I have drawn on for this post. The sentence fragment you’ve used shows only that entering into the Constitution was voluntary (which it was). I have a copy of that very Amar essay, and his thesis is that Lincoln was (mostly) right in his interpretation of the Constitution–that secession was unconstitutional (as well as wrong-headed, but that’s another point). So, if you are going to cite Amar, you either have to show why he’s wrong, or agree with him. But plucking a few words out of context most certainly does not prove your point.

You do the same thing with Madison/Publius. The sentence you have picked from Federalist #45 is totally unmoored from its context. Here is the entire passage:

It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object. Were the plan of the convention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter. How far the sacrifice is necessary, has been shown.

What Madison is telling his audience is that the purpose of government is to ensure public welfare. If he thought the either new Constitution, the Union itself, or any state did not pursue the public good, then it should be abolished. That is not the way you represented it.

Lastly, yes, the Civil War created a vast amount of unhappy people. But four million freedmen might disagree with you. And those of us today who are happy that we don’t live in a Balkanized North America next to a nation predicated on slavery are certainly grateful.

Mr. Shellley,
You seem to misunderstand the reason the method used to ratify the constitution was through STATE conventions rather than the state legislatures. It certainly had nothing to do with minimizing importance of the states or their indispensable role in establishing, and executing, the constitution. Rather, it was because that was the only lawful manner by which the states could secede from the AoC, and therefore establish a new constitution. Remember, unlike the constitution, the AoC had an iron-clad law of perpetuity and unanimity, and, you will also remember, Rhode island refused to participate in the proceedings of the convention. Therefore, if the constitution had been submitted to the respective state legislatures for approval, it would have been flagrantly illegal, as both James Madison and Pulitzer-prize winning historian Jack Rakove, among others, have observed.

Now then, as for Patrick Henry, no doubt he was concerned about the method of ratification (among other features of the constitution), but his fears were thoroughly assuaged by Madison’s principled explanation as it appeared Fedealist 39:

“…On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, WILL NOT BE A NATIONAL, but a federal act…”

As for Professor Amar, if he disappoints you, it is only because he himself could not escape the unrelenting truth of the matter. And irrespective of his position on secession, he EXPLICITLY declared that it was THE STATES that ratified the constitution. EXPLICITLY. As for Madison and Federalist 45, the more lengthy passage you quote merely takes up more space; it does absolutely nothing to alter or diminish the meaning, in any way, of Madison’s sensible endorsement of secession and dissolution as a remedy for political discord and civil disharmony.

Lastly, I am not at all persuaded that the slaves were happier after their emancipation, but I do know that the war was not fought against slavery. Classic Straw-man argument. Nevertheless, I will happily concede I do not know what kind of slave-owner James Madison was, or Mary Todd Lincoln, or for that matter Chief Justice John Marshall. I do know that George Washington and Thomas Jefferson were decidedly cruel slave-owners. Not sure about Ulysess S. Grant, but I do know that Union General William Harney beat his slave girl to death (she seems to have lost his keys). And Balkanization? Did you call it Balkanization when the British Colonies seceded from the British Empire, or when the Soviet Union dissolved? Was it Balkanization when Texas seceded from Mexico? What about when Mexico seceded from Spain? When the U.S. sponsored the secession of Panama from Columbia (so we could get the canal), was that Balkanization too?

PS- Enough with these puerile claims of “cherry-picking” and “out-of-context”. It is a desperate tactic, especially given the fact that as you most certainly have not presented the full body of work of any particular author, it is a charge I can just as easily lodge against you.

No, I understand the reasons and method of ratification fine. And, as I’ve already stated, it was about establishing a sovereign United States government that would replace the Articles of Confederation. The Articles of Confederation was not a sovereign government, but rather a kind of United Nations assembly, a creature of the states.

You seem to think that I don’t believe the states retained any power at all, or somehow became creatures of the federal government, but that’s not so. Certainly they retained their sovereignty, but it was not as powerful as before. And yes, this was a purposeful attempt to get by the state legislatures, as Jimmy has pointed out. But their reserved rights as states did not include a right of secession.

Your point about the bypassing the Articles of Confederation is interesting. I have not read Rakove, although he’s on my list. But the contempt held by the Philly convention for the Articles is pretty legendary. Just the fact that Washington & Company totally exceeded their instructions from the Confederation Congress, which required of the Convention to merely revise the Articles, and instead drafted a new Constitution, shows that. You would be better off, it seems to me, to argue that ratification itself was illegal since no state specifically amended their state constitutions to allow for this new arrangement of sovereignty. That too would be a fruitless argument, but it would at least have some merit.

Patrick Henry’s concerns were obviously not at all assuaged by Federalist #39, since he voted against the Constitution. He became a supporter only because Washington, whom he idolized, became president. I’m sure he wasn’t the only one.

Actually, Federalist #39 proves my point perfectly. Madison is arguing that the new government would indeed be ordained by “the people of America.” But at the same time, it was not to be a pure “national” government—a government in which the states would have little or no power (which is what Hamilton proposed in the Philly convention). Again, he is proposing dual sovereignty. And the nature of that new-constituted sovereignty was an indivisible Union. A chunk of We, the People cannot simply calve off because some section or limb is bitter over an election or policy.

In a nutshell, Fed 39 is in complete accord with my argument: that 13 separate nation-states came together in an indissoluble merger (the world’s largest corporate merger, in my phrasing) in 1787-88. So. yes, the ratification was purely federal: No state was bound absent its consent. Each state had to say yes before it could be bound, but once you’re in, you’re in. Which is why the man who writes Fed. 39 (Madison) also pointedly insists in the NY ratification debates (in a passage I highlight in Chapter 1 of ACAB that ““[t]he Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States” (including Madison’s own Virginia).

And so no, Prof. Amar does not disappoint me at all. Quite the contrary. In fact, he makes several more points in The American Constitution:

Even more striking than what the Constitution’s friends said is what they did not say. No leading Federalist ever publicly sought to win over states’ rightists by conceding that a state could unilaterally nullify or secede in the event it later became dissatisfied. The Federalists’ silence here was deafening, given how reassuring to states’ rightists such a response would have been in all the places where the Philadelphia proposal hung precariously in the balance. Responding to the fears voiced by Anti-Federalist “men of little faith,” Federalists stressed many specific protections—bicameralism, separation of powers, enumerated powers, refinements in representation, the amendment process, the states’ status as building blocks in the national government, and much more. But never did Federalists float the right of an individual state to secede or nullify. Never did they say, “Give the new plan a try, and if you don’t like it, your state may always leave.”

Alongside what various persons said and did not say in constitutional debates, we must attend to what the American people themselves did and did not do in the act of constitution itself. No state convention, in its ratification instrument, purported to reserve the right of its state populace to unilateral secession. Notably, Virginia’s convention spoke of the right of the people of the United States, not the people of Virginia, to reassume power through future acts of popular sovereignty. Nor did any state convention impose any condition on its act of ratification.

(Beg pardon for not supplying page numbers. My copy of American Constitution is at the office. I will provide those on request.)

To repeat my point in the main post, and Prof. Amar’s point in the email, Madison and Hamilton—the principal architects of this movement—understood that, as Madison put it, “[t]he Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States”.

For ever. It doesn’t get much more explicit or emphatic.

As far as slavery and the personal happiness of freedmen, I’m not sure how to react to this comment. But given the tone of respect we have established here, I will simply recommend you read up on Reconstruction. There are literally endless expressions of thankfulness and relief by former slaves at being free. If the process of Reconstruction was painful for Southern blacks, preventing perfect “happiness,” it’s important to remember that that pain was largely due to the terrorism they were subjected to by white Southerners who rejected black equality. To my memory, I have never found in the historic record expressions of regret by freedmen. If they exist, I don’t remember seeing them.

The Civil War was fought over the nature of the American Union. Slavery was one of two issues; the other was the indissolubility of the Union. But without slavery, the war never happens. I will treat this theme in a future post.

Last: you mistake the legal process of secession with the extra-legal process of revolution. They are two different things. The United States did not secede from Great Britain; Mexico did not secede from Spain; Texas did not secede from Mexico, etc. And my point about “balkanizing” is the same as Lincoln’s point, made in the First Inaugural Address: that the subdividing of American republics into smaller and smaller countries based on the idea of secession would lead to continental strife; probably war; and then the end of republican liberty. That, at least, is what Publius/Hamilton-Jay argued in The Federalist 1 thru 9.

PS—if you pull things out of context, you should expect to be challenged. If you catch me doing so, I expect you to call me out.

Mr. Shelley,
It is unfortunate, but you persist in errors that are all too easily corrected. I will take these errors as they appear in your reply, and make the appropriate corrections as I consider them.

1. You write:
“…But their reserved rights as states did not include a right of secession.”

Most certainly those reserved rights included a right of secession. However, as you seem to think otherwise, please show me a constitutional prohibition against secession in the constitution. You might want to begin with Article I, section 10. That is where the powers which the states are prohibited from exercising are enumerated. Please note that the power to secede is not among those enumerated. Also, as you review 1-10, please keep in mind the bedrock legal principle “Nulla poena sine lege”. In translation, it means “no penalty without law”. Please note that at the time of the respective Southern secessions, there was no prohibition against secession in the constitution, and no federal legisaltion which prohibited secession.

2. You write:
“But the contempt held by the Philly convention for the Articles is pretty legendary. Just the fact that Washington & Company totally exceeded their instructions from the Confederation Congress, which required of the Convention to merely revise the Articles, and instead drafted a new Constitution, shows that.”

Sorry, but the role of the Congress was merely to recomend to the States that a convention be held. The States had no obligation to comply with the request. None whatsoever. And the actual credentials which specifically granted to the the Delegates the authority to revise the AoC, were issued by the States, not the Confederation Congress.

3. You write:
“Patrick Henry’s concerns were obviously not at all assuaged by Federalist #39, since he voted against the Constitution”.

No. Henry voted against the constitution for a plethora of reasons, but objections to ratification was not one of them. Madison, with 39, fully satisfied his concerns regarding the ratification. Henry also learned that the constituton did in fact originally read, in the preamble “We the States of Virginia, Maryland, Pennsylvania etc. etc.”
He laso learned that the reason for the change to the language from “WE the States”, to “We the People of the United States” was simply because it was not know who would ratify and who would not. The language “We the People of the United States” would embrace all the states that ratified, and not name those that chose not to ratify and therefore would not be part of the new Constitutional Comapct.
And Madison was explicit that, while there would certainly be national features to the constituion (no one disputes this), ratification would not be one of them. These were his words:

“The act, therefore, establishing the Constitution, WILL NOT BE A NATIONAL, but a federal act…”

4. You write:
“..Never did they say, “Give the new plan a try, and if you don’t like it, your state may always leave.”

Actually, Madison said exactly that.
“…If we be dissatisfied with the national government, IF WE SHOULD CHOOSE TO RENOUNCE IT, this is an additional safeguard to our defense…”

5. You write:
“…For ever. It doesn’t get much more explicit or emphatic.”

Except Madison also wrote:
…If we be dissatisfied with the national government, IF WE SHOULD CHOOSE TO RENOUNCE IT, this is an additional safeguard to our defense…”
and
“…Were the Union itself inconsistent with the public happiness, it would be, ABOLISH THE UNION….”
“ABOLISH THE UNION”. It doesn’t get much more explicit or emphatic.

6. You write:
“…Each state had to say yes before it could be bound, but once you’re in, you’re in.”

Sorry, but the framers were establishing a voluntary system of government for freemen whose political inheritance was the absolute right of self-determination. That ugly sentiment as expressed by Professor Amar, sadly, is more fitting for the Taliban or the Sicilian Mafia. Again, truly an ugly and anti-democratic sentiment.

7. You write:
“…I have never found in the historic record expressions of regret by freedmen. If they exist, I don’t remember seeing them”

The records exist, and in significant numbers. Many, many former slaves expressed deep affection for their former owners, and bitterly complained that they were far worse off after “freedom”. Just read the “WPA Slave Narratives”. They are, of course, available online.

8. You write:
“..The United States did not secede from Great Britain; Mexico did not secede from Spain; Texas did not secede from Mexico, etc.”

Are you claiming that the United States are still part of the British Empire? Or that Mexico is still part of Spain? Or that Texas is still part of Mexico? Or that Panama is still part of Columbia (why did you leave that one out)?

PS. Your quotes from Amar constitute cherry-picking and are entirely out of context.

PPS- The War for Southern Independence was fought over the right of secession and political self-determination. It had absolutely nothing to do with slavery.

1. As has been said repeatedly, there is neither an explicit prohibition nor sanction for secession. This is why we have to parse the text, the debates, and the actions of Americans in this charged period. You choose to emphasize the lack of prohibition, a principle of British law, and your interpretation of Article VII. That’s fine. I choose to emphasize the Preamble, Article VI, Clause 2 (the supremacy clause), Article VI, Clause 3 (which requires all significant state officials to swear or affirm loyalty to the Constitution), and my interpretation of Article VII (which highlights that the conventions in the states ratify). We both have different interpretations over the meaning of the ratification debates themselves. Looks like we are at an impasse.

2. This appears immaterial to me. I don’t see its importance. The Congress gave directions to the Philly Convention, and those directions stated clearly that the Convention was only to revise the Articles. The Convention exceeded its authority, and Congress was not pleased. But it sent the Constitution out to the states anyway, recommending that the states hold ratification conventions. Most states did this.

3. Again, you and I disagree on how to read the prose of an eighteenth-century lawyer. A federal government by definition means the central government is supreme. But the fact is: in the most democratic act the world had ever seen (up to that point), Americans ordained the Constitution. in doing so, they vested sovereignty into two separate entities; and the central entity was the more powerful. It was not a compact.

4. Those are Amar’s words. But this is exactly what I mean by context. Here is the passage in its entirety:

The honorable gentleman says that it is a government of force. If he means military force, the clause under consideration proves the contrary. There never was a government without force. What is the meaning of government? An institution to make people do their duty. A government leaving it to a man to do his duty or not, as he pleases, would be a new species of government, or rather no government at all. The ingenuity of the gentleman is remarkable in introducing the riot act of Great Britain. That act has no connection, or analogy, to any regulation of the militia; nor is there any thing in the Constitution to warrant the general government to make such an act. It never was a complaint, in Great Britain, that the militia could be called forth. If riots should happen, the militia are proper to quell it, to prevent a resort to another mode. As to the infliction of ignominious punishments, we have no ground of alarm, if we consider the circumstances of the people at large. There will be no punishments so ignominious as have been inflicted already. The militia law of every state to the north of Maryland is less rigorous than the particular law of this state. If a change be necessary to be made by the general government, it will be in our favor. I think that the people of those states would not agree to be subjected to a more harsh punishment than their own militia laws inflict. An observation fell from a gentleman, on the same side with myself, which deserves to be attended to. If we be dissatisfied with the national government, if we should choose to renounce it, this is an additional safeguard to our defence. I conceive that we are peculiarly interested in giving the general government as extensive means as possible to protect us. If there be a particular discrimination between places in America, the Southern States are, from their situation and circumstances, most interested in giving the national government the power of protecting its members.

Madison is not saying he believes this, as you assert; he is saying another gentleman is saying it. He grants that the man is on “the same side as myself”, meaning the man is a Federalist; but notice that Madison does not go on to endorse renouncing the government. In fact, the gist of the entire passage is that force from the central government is sometimes necessary! He’s arguing that militia are good enough, so there would be no need of a national standing army. And so, this other gentleman may believe in secession, but Madison did not. By leaving out the previous sentence–by taking the quote out of its context–you have totally changed the meaning of the quote! That’s not what historians are supposed to do.

5. See 4 above. Also, you continue to take the quote from Federalist #45 out of context.

6. Again, these Amar’s words, but they accurately represent my position. I disagree with your characterization. The purpose of the Constitution was to ensure republican liberty through continental Union. The Framers did not support any such “absolute right of self-determination.” They had seen first-hand how dysfunctional and dangerous (in their minds) such absolute rights under the Articles of Confederation had been. They purposefully wanted something much more powerful.

7. This thing on slaves is incidental to the main point. But, yes, I have perused the Federal Writers’ Project stuff–a great resource! And I find the great preponderance of former slaves preferred freedom. It’s one of those things where the exception proves the rule.

8. I am merely stating that the two processes are very different. One is attempting separation through legal means; the other through violence. I left out Colombia and Panama because I just don’t care—that situation was also a revolution and not secession.

PS— Please identify how I have cherry-picked Amar and represented his work out of context.

The ratification conventions were the closest means to getting to the people as possible for ratification of the Constitution. State legislatures were deliberately bypassed for this process because had it been left to them alone the Constitution would not have been ratified. You keep focusing on the idea that states alone ratified the Constitution. This is highly incorrect. It was the conventions that ratified them.

You have argued over and over on these lines before, Austin or caldwell. (Mr. History, as if!) Each time you come up short because you continually reject the majority opinion. The Constitution was ratified in the proper way and became the law of the land. No state reserved any power. The conventions ratified the Constitution, not the state legislatures. It is plainly obvious, yet you reject the idea because you are desperate for any grain of sand to base secession on. It does not exist.

You have repeatedly offered false and empty arguments in the past Mr. Dick, and now you continue on the same path. As for your present false assertions, it should be known that the State legislatures were not “bypassed”. In point of fact, in EVERY SINGLE STATE, it was the STATE LEGISLATURES that called for the constitutional conventions. They were not required to do so; it was purely voluntary (as proven by Rhode Island’s refusal to participate). Ratifications were performed by means of STATE convention because it would have been unlawful, owing to Article XIII of the AoC, to adopt the constitution by any other means. As for your laughable comment that “no state reserved any power”, well, that is pure nonsense. Here is Madison in Federalist 45:

“The POWERS RESERVED TO THE SEVERAL STATES will extend to all objects…”

And no one ever said, and I most certainly never said, that the state legislatures ratified the constitutions. Never. That is pure straw-man bovine scatology. You so desperate for a prohibition against secession, that you are perfectly willing to ignore the express text of the constitution that you dislike, and re-write the constitution to suit your personal preferences. Sorry, the constitution says what is says. And it says, most emphatically, that the constitution was ratified by the states. And for that matter, Akhil Amar also says, most explicitly, that the states ratified the constitution.

Sounds like Mr. NOThistory is getting his butt spanked as usual. You’re advancing a line of argument that has no basis in reality. The state legislatures had a choice to make. They had to call for a ratification convention or explain to the people why they did not. The folks who wrote the Constitution were pretty smart people and they knew how the system worked. You don’t, but then that is not surprising because you want the Constitution to mean something it doesn’t.

The Constitution was ratified at those conventions by representatives of the people. The power comes from the people, not the states. To say otherwise shows a complete lack of constitutional understanding. Professor Amar specifically points out that the states ratified the Constitution through the body of its people. You are just trying to twist his words to support your version of the process and that is a massive failure on your part.

The bottom line is that the power of this government comes from the people and to question that shows you do not know what you are talking about. You cannot be taken seriously and you have no future in historical interpretation. You got your butt spanked on every blog you posted on by multiple people, yet you still open your mouth and say you are correct. That is pure ignorance on your part as usual.

No state reserved any power that was not reserved for them in the Constitution. Virginia did not reserve any powers when it ratified the Constitution nor did any other state. You can read the documents and see it in black and white. That is if you can actually read them without making up some bogus claims that 99% of all Americans have rejected as pure lies. I doubt you can do that. But if you want to keep on lying your ass off about it and “educating” people, then get off your lazy ass, go get a master’s degree in History or political science, and then go find a college that will employ you.

I won’t be holding my breath for it to happen because you wouldn’t be able to pass the class on the Constitution. Now run along back to the rest of the Causers so you can whine about things that you have no control over.

Hey Jimmy,
How did that 2×4 feel right between the eyes? Lol, “no state reserved any power”. So it looks like, yet again for crying out loud, that Mr. Dick is getting yet another beat-down; par for the course. Your reasoning, as usual, is deeply flawed and utterly baseless. Though I do agree that the folks who wrote the constitution were indeed pretty smart people. Which is why had they wanted to unite the people, rather than unite the states, Article VII would say, as it most certainly does not “between the people so ratifying the same”. And Professor Amar clearly uses the language “AMONG THE STATES”. I repeat “AMONG THE STATES”. That’s gotta sting, huh?

The bottom line here is that under our system of government it is the states that are united and not the people. Hence the legal name of our country, the name by which we are known across the entire globe and tghroughout the entire world, is “The United States of America” and NOT “The United People of America”. That’s gotta sting too, huh Jimmy? Nor is that all.

To fire another shot below the water-line of this ridiculous notion that it is the people, and not the states, that are united under the constitution I refer you to the events, in convention, of July 23, 1787. On that date Gouverneur Morris, of Pennsylvania, offered the follwoing motion:

“…moved, that the reference of the plan be made to one general Convention, chosen & authorized by the people to consider, amend, & establish the same. -Not seconded

So, it is a historical fact, that constitutional convention specifcally considered the idea of holding a national convention for the specific purpose of creating a national government ratified by the people at-large on a national basis. The idea was treated by the convention with such disdain and contempt., it was not even seconded.

Jimmy, you are a laugh-riot, and your total ignorance, as well as your comic-book version of history, always makes me giggle.

Mr. History, both Jimmy and I have refuted your singular “THE STATES” quote by Amar several times now. Do you have a counter? Or are you going to just keep repeating it? You need more here than to assert “The bottom line is…” without any further evidence. And you need to put the Morris quote in some sort of context for it to mean something.

And what about the other arguments? You haven’t countered them as of yet; while we have refuted (so far) all of your points.

Jimmy, I do believe that the states reserved both powers and rights under the Constitution, and that some of those powers and rights are unenumerated. I think that’s part of what federalism is all about. The Framers left the lines blurry, and we today get to sort them out (medical marijuana, anyone?). But I absolutely agree that the right to secede was not one of those unenumerated rights. The entire logic of the Constitution gestures against it.

Chris, no state reserved any powers other than those reserved under the Constitution. They could not alter the Constitution in the ratification process. The Founders left the lines blurry on purpose. Had they written what they really wanted it would not have been ratified.

As for Mr. DefinitelyDoesn’tKnowHisHistory, you’ve had your butt whipped on six blogs by myself and others. Yet, here you are once again lying about the past in order to validate your ideology. Here we go again, with the broken record of a Lost Causer whining about the Constitution and refusing to admit he doesn’t know his ass from a hole in the ground.
Sorry to be so crude, but at a certain point I just get tired of your ignorance.
Go get an education. Until then I’m ignoring you like the little child you are.

Something to think about, Chris. We have judicial review as a firmly established tenet of the system. The recent Hobby Lobby ruling displeased a large segment of the country and may end up being a very bad ruling, but time will tell. Regardless of how anyone feels about that ruling, it is the law of the land. That’s it.

While going through the 1850s and pointing out how the issue of slavery kept backfiring on the South and costing the Democrats all of its northern support, we went through the Dred Scott case which is perfect for explaining how judicial review, even when the decision is bad, still remains the law of the land.

This leads us to a case involving secession where the Supreme Court’s decision still stands to this day. In Texas v. White, the decision was made that secession is unconstitutional without the consent of the federal government. Until such time as that decision is overruled or an amendment passed that alters the Constitution concerning secession, we all have to abide by that decision.

Jimmy, I could not agree more. But since this comment thread dealt with ratification, I chose to not bring in SCOTUS, either ante- or post-bellum decisions.

But you are right: regardless of the Constitution’s ambiguity on secession, SCOTUS ruled–again and again and again–that dual sovereignty is a thing; that states are organically part of a larger Union; and that unilateral secession is unconstitutional. That’s it, indeed.

Mr. Shelley,
Neither you nor Mr. Dick have refuted anything. Not a sinlge point that was made. All you have done, really, is display an ability to look past words, expressions and language which do not fit your agenda. As for the Morris quote, it is in context and presents still another example of evidence staring you right in the face that you deliberately ignore. And the “out of context” nonsens is getting old. All it means is that you are unable to counter what was said..

As for Mr. Dick, I have watched you flail wildly and hysterically on numerous occasions. I have casually and effortlessly battered and bruised you in debate, and I have watched you respond, hilariously, by trying to bully and intimidate. You endlessly wail and screech the same carefully rehearsed and lame Emancipation Mythology. It is empty, useless, and worn-out. Try getting an eduction, and you will spare yourself additional humiliation. But it is doubtful. I will disregard your stupid and pathetic temper tantrums from now on.

Chris, the entire ratification process was a unique event in our country’s history. The delegates were entrusted by the people who elected them to make a momentous decision on their behalf; to decide whether or not the proposed Constitution should be ratified and become the basis of the government in the US. They took the job seriously and engaged in the greatest debate our nation has ever known. They argued, they discussed, they decided. Once they were done, they went to work to make the nation work in accordance with the Constitution.

I think Pauline Maier may have written the best work on the entire ratification process. She went into great depth in looking for the back stories of each convention and showed how the people made their will known through those representatives. I think Ratification is her best book by far. It is a major blow to us that she has passed away. I would love to have her notes on that book, but being the thorough scholar that she was, she gave us the sources she used which is almost as good.

Since you like Amar and Beeman, have you been to the National Constitution Center’s website? I link it for my students when I give them their Constitution exam each semester. I even pulled material straight from the site for some of the questions. Amar, Beeman and Gordon Wood and Linda Kerber on on the Scholar’s Advisory Panel. It is a non-partisan entity as both Bush and Clinton are chairmen emeritus, Jeb Bush is current chairman of the Board of Trustees, Antonin Scalia and Sandra Day O’Connor sit on the panel, etc. The whole thing is definitely a great work. http://constitutioncenter.org/

Wow, nice resource! Thanks. In exchange, may I recommend the Constitutional Accountability Center ( http://theusconstitution.org/ )? Great stuff there, including an article called “The Gem of the Constitution” that is the most cogent description of the Fourteenth Amendment I’ve ever seen. Breathtaking. I breaks down exactly what it was meant to do, and what happened to it.

Thanks. I will definitely look at it. I’m trying to finish up this lecture series on the Civil War for tomorrow’s class. I’m using clips from Ken Burns The Civil War as I continue to integrate technology into the classroom. I’ve got another class session to fill with the overflow of this stuff, but I have never done this before so I’m not sure how the time element will work. Too much area to cover for the CW in 4.5 hours. But that’s the survey class. At least I have the why part drilled into them. That’s the important part. Now to focus on the element of change.

4.5 hours? That’s brutal. I am extremely fortunate that PCC went to three 4-credit classes per term for U.S. history. We’ve divided them into pre-contact-1840; 1840-1914; 1914 to how far can you get? (I get to 1988, more or less.) This is not to gloat–I have great empathy for you. If I had to do the war in one-and-a-half class periods, I would cry.

If there is no law against a state seceding, and nothing in the constitution against it, it can’t be illegal. And even tho Chris keeps saying it is supposed to last forever, there is nothing in the constitution that says that either. Given all that, how the heck can it be illegal for a state to leave. I mean, if either of those things were actually in there, that would be one thing; but neither is. Ya can’t just pretend it’s there when it really isn’t.

Did I miss something? Is there a law in the constitution that says it is to be perpetual? I mean, I know there was in the previous constitution, so why did they leave it out of this one? It seems that if they wanted it to last forever, they would have said so like they did before. And you already said that there is nothing written in the constitution which makes a state leaving illegal. It just seems so very obvious.

I don’t understand why you’re using a different name, Mr. History. Would you prefer that I refer to you as Colleen now? You should be working on my last response to your list rather than wasting our time rehashing positions we’ve already discussed.

I thought you banned me (often when the unionists begin to realize the vulnerabilities of their position, they disallow my posts-either that or they actually edit and alter them). Anyway, I thought it was important to you remind that:

1. There is nothing in the constitution which prohibits secession

2. There is no federal law which prohibits secession

3. There is no law of perpetuity in the constitution

4. There was no pledge of perpetuity in any of the state ratifications

5. There is no law of uninamity in the constitution.

Unless I am mistaken. Now then, as you have already openly acknowledged that there is nothing which prohibits secession in the constitution, perhaps you can you show me a federal law which makes secession unlawful? Or perhaps you will show me a law of perpetuity in the constitution? Can you show me a pledge of perpetuity in the state ratifications? Can you show me a law of unamity in the constitution?

Because my position has no such vulnerabilities, I’m not threatened by your assertions. The only “vulnerability” in the Unionist position is shared by the secessionist position: there is no explicit mention of secession in the Constitution. It is silent. That’s why we have to look at what the Constitution implicitly says of secession. And the evidence I’ve shown in the blog post demonstrates that there are far more implications that secession is prohibited than permitted. As to your last comment:

Anyway, I thought it was important to you remind that:
1. There is nothing in the constitution which prohibits secession

4. There was no pledge of perpetuity in any of the state ratifications

See 3 above.

5. There is no law of uninamity in the constitution.

No “law of unanimity” is necessary. The Constitution itself binds the states, and the people residing in those states, into perpetual Union.

Unless I am mistaken.

I believe you are.

Now then, as you have already openly acknowledged that there is nothing which prohibits secession in the constitution…

Nor have you shown that there is anything in the Constitution permitting secession, although you have refused to admit it.

…perhaps you can you show me a federal law which makes secession unlawful?

Again, there is no need. The text of the Constitution itself, coupled with the act of ratification by the conventions of We, the People, imply strongly that the Union is perpetual, and therefore secession unlawful. And to crown the whole, the Supreme Court’s four rulings make this idea explicit–that sovereignty is vested in We, the People, and so enshrine the Unionist position.

Or perhaps you will show me a law of perpetuity in the constitution? Can you show me a pledge of perpetuity in the state ratifications? Can you show me a law of unamity in the constitution?

Not needed, not needed, and not needed, for the reasons stated above.

And now that I have addressed your assertions, Colleen/Mr. History, I’d like you to address mine. Here are just three:

If the intent of the Framers was simply to make a stronger government that was still a creature of the states, why did they insist on conventions within the states?

If the Constitution is merely a compact among the states, why is there an explicit “supremacy clause” (Article VI, Clause 2), explicitly elevating federal law over state law?

If the Constitution is merely a compact among the states, why are state officers required to swear an oath to uphold the U.S. Constitution (Article VI, Clause 3), but federal officers not required to swear an oath to the states?

Indeed there is, and it is inherent in, and fundamental to, the very structure and nature of the constitution. The Constitution permits the federal government certain enumerated powers, and leaves to the States the mass of unenumerated powers. I will allow James Madison, from Federalist 40, to offer the particulars:

“We have seen that in the new government, as in the old, the general powers are limited; and that the States, IN ALL UNENUMERATED CASES, are left in the enjoyment of their SOVEREIGN AND INDEPENDENT JURISDICTION”

Please note the specific language ALL UNENUMERATED CASES. Not some unenumerated cases, but ALL UNENUMERATED CASES. Accordingly, the irrefutable constitutional logic goes exactly like this:

A. There is nothing in the constitution which prohibits secession (it is an unenumerated case)
B. Any powers not prohibited (unenumerated) to the States, are reserved to the States (see both Madison above and the tenth amendment)
C. Because the power to secede not prohibited (it is unenumerated) to the States, it is therefore a reserved power of the States, and it is to be enjoyed and exercised in their SOVEREIGN AND INDEPENDENT JURISDICTION

This is most odd. Not a single case you cite here has anything to do with secession. Fletcher was brought and decided under the contract clause, McCullough contemplated taxing authority, Gibbons was a commerce clause action, and Cohens involved section 25 of the Judiciary Act of 1789. Again, not a single case you cited contemplated secession.

“No. but none is needed.”

Actually I agree. A law of perpetuity is needed only if you want to establish a perpetual union. In the absence of a law of perpetuity, the compact “BETWEEN THE STATES”, is, by definition, a contract at will, and may therefore be terminated at the pleasure of the parties to the compact.

“Not needed, not needed, and not needed, for the reasons stated above”

True, but then you are left with a contract at will that may be dissolved at the pleasure of the parties to the compact.

“If the intent of the Framers was simply to make a stronger government that was still a creature of the states, why did they insist on conventions within the states?”

You basically just demolished your cause with this question, and it was unnecessary too, because we had already touched upon the subject. Nevertheless, since you asked; unlike the constitution, the AoC actually did have an iron-clad law of perpetuity and unanimity. And in order to avoid egregiously violating the AoC, the framers were compelled to appeal to first principles. The people in each State, as the only legitimate source of original political authority, undoubtedly had the power to alter and abolish their forms of government as they pleased. And this is precisely what they did in 1776, 1788, and again in 1860.

If the Constitution is merely a compact among the states, why is there an explicit “supremacy clause” (Article VI, Clause 2), explicitly elevating federal law over state law?

This question too harms you, and very badly. First off, the Supremacy Clause is a vitiated version of the constitutional provision Madison desperately wanted, and was refused by the convention. More specifically, Madison contended for a provision which would have given the Congress the authority to completely veto state legislation. Madison lost this battle on July 17, and had to settle for the Supremacy Clause. And the Supremacy Clause most certainly does not “explicitly elevate federal law over state law”. Rather, the clause properly delineates the scope of authority of both state and federal law. Laws, both federal and state, are valid only insofar as they are made in pursuance of the constitution. And make no mistake about it, the Supremacy clause operates every bit as much in support of the tenth amendment as it does it support of any other provision in the constitution.

If the Constitution is merely a compact among the states, why are state officers required to swear an oath to uphold the U.S. Constitution (Article VI, Clause 3), but federal officers not required to swear an oath to the states?

Complete non-issue, Read Federalist 27, and Hamilton will walk you through it. It’s actually one of Hamiltons’ less quodlibetic and more pragmatic essays.

Yes, you got me. I concede. I clearly should have said there is no explicit right to secede, or is there an explicit prohibition to secession. I should have been more careful in my diction. Which, actually, I did, one paragraph earlier. But after this mistake of mine, your arguments are either mistaken or wrong.

Indeed there is, and it is inherent in, and fundamental to, the very structure and nature of the constitution. The Constitution permits the federal government certain enumerated powers, and leaves to the States the mass of unenumerated powers. I will allow James Madison, from Federalist 40, to offer the particulars:
“We have seen that in the new government, as in the old, the general powers are limited; and that the States, IN ALL UNENUMERATED CASES, are left in the enjoyment of their SOVEREIGN AND INDEPENDENT JURISDICTION”
Please note the specific language ALL UNENUMERATED CASES. Not some unenumerated cases, but ALL UNENUMERATED CASES. Accordingly, the irrefutable constitutional logic goes exactly like this:
A. There is nothing in the constitution which prohibits secession (it is an unenumerated case)
B. Any powers not prohibited (unenumerated) to the States, are reserved to the States (see both Madison above and the tenth amendment)
C. Because the power to secede not prohibited (it is unenumerated) to the States, it is therefore a reserved power of the States, and it is to be enjoyed and exercised in their SOVEREIGN AND INDEPENDENT JURISDICTION

Your reasoning is fatally flawed. It simply disregards almost every point I’ve made. It is based—still, yet again—on your notion that the states ratified the Constitution, when I have already shown that the special conventions ratified it. For the last time: We, the People ratified the Constitution. In doing so, the People vested sovereignty into a new government. You do understand this idea of “sovereignty”, right? And how Calhoun’s “compact theory” denied that the federal government could be sovereign? Calhoun explicitly rejected Madison’s dual sovereignty idea. Calhoun’s theory and Madison’s theory can’t exist in the same political realm—either one is right or the other.

The reason this is so important is that at that moment the People vested sovereignty in this new government, it became a sovereign whole, incapable of breaking apart, except by another agreement of We, the People. No state, then, could unilaterally secede. These states were no longer separate absolutely sovereign entities anymore; they became part of a larger, organic whole.

And so, the very act of ratifying meant that secession could never be an unenumerated power or right. By definition, accepting membership in the Union implicitly meant waiving that right. The adoption of the Tenth Amendment indeed guaranteed unenumerated rights and powers to the states and people. But secession was not one of them. That right no longer existed.

This is the ultimate, elegant logic of the Constitution that flows from the indissoluble model explained many times by myself and Prof. Amar. Of course, you are free to disagree with it. But at this point, I’m done arguing about it. It’s clear that this is one of those “agree to disagree” things.

“But there are four Supreme Court decisions, all of which explicitly affirm the Unionist position: Fletcher v. Peck, (1810); McCullough v. Maryland, (1819); Cohens v. Virginia, (1821); and Gibbons v. Ogden, (1824). Thus, unilateral secession is unconstitutional.”
This is most odd. Not a single case you cite here has anything to do with secession. Fletcher was brought and decided under the contract clause, McCullough contemplated taxing authority, Gibbons was a commerce clause action, and Cohens involved section 25 of the Judiciary Act of 1789. Again, not a single case you cited contemplated secession.

There’s nothing odd about them. But I beg pardon. I missed a step, since I assumed you were familiar with these important cases—I did discuss Gibbons in the blog post, and I assumed you actually read my arguments before jumping in.

What these four cases have in common is that they all support the dual sovereignty theory that I have painstakingly been laying out, again and again, in these comments. The Court found in every case that the act of adopting the U.S. Constitution fundamentally altered the relationship between the people and the states. Here is Chief Justice Marshall in Fletcher:

But Georgia cannot be viewed as a single, unconnected, sovereign power, on whose legislature no other restrictions are imposed than may be found in its own constitution. She is a part of a large empire; she is a member of the American union; and that union has a constitution the supremacy of which all acknowledge, and which imposes limits to the legislatures of the several states, which none claim a right to pass.

Here is McCullough. First, Marshall describes what Maryland is asking of the Court:

In discussing this question, the counsel for the state of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument, not as emanating from the people, but as the act of sovereign and independent states. The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess supreme dominion.

We see, then, that the counsel for Maryland is arguing for your version of the Constitution. Marshall has a shock for him:

It would be difficult to sustain this proposition. The convention which framed the constitution was indeed elected by the state legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligations, or pretenses to it. It was reported to the then existing congress of the United States, with a request that it might ‘be submitted to a convention of delegates, chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification.’ this mode of proceeding was adopted; and by the convention, by congress, and by the state legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several states–and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments.

From these conventions, the constitution derives its whole authority. The government proceeds directly from the people. . . .[My emphasis]

Here is Cohens, emphasizing the Supremacy clause:

That the United States form, for many, and for most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people…. America has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes, her government is complete; to all these objects it is competent. The people have declared, that in the exercise of all the powers given for these objects, it is supreme. . . . The constitution and laws of a State, so far as they are repugnant to the constitution and laws of the United States, are absolutely void. These States are constituent parts of the United States. They are members of one great empire.

And here is Gibbons:

When these allied sovereigns [meaning the states] converted their league [meaning the Articles of Confederation] into a government, when they converted their Congress of Ambassadors, deputed to deliberate on their common concerns, the whole character in which the States appear, underwent a change.

These four cases together develop the idea of permanency implicit in the Constitution, and make that permanency explicit.

“No. but none [a law of perpetuity] is needed.”
Actually I agree. A law of perpetuity is needed only if you want to establish a perpetual union. In the absence of a law of perpetuity, the compact “BETWEEN THE STATES”, is, by definition, a contract at will, and may therefore be terminated at the pleasure of the parties to the compact.

No. a law is not necessary because the theory of the Constitution itself, supported by the Supreme Court, means it is already perpetual. A so-called law of perpetuity would be redundant. Again, it is not a compact. And Chief Justice Marshall disagrees with you as well.

“If the intent of the Framers was simply to make a stronger government that was still a creature of the states, why did they insist on conventions within the states?”
You basically just demolished your cause with this question, and it was unnecessary too, because we had already touched upon the subject. Nevertheless, since you asked; unlike the constitution, the AoC actually did have an iron-clad law of perpetuity and unanimity. And in order to avoid egregiously violating the AoC, the framers were compelled to appeal to first principles. The people in each State, as the only legitimate source of original political authority, undoubtedly had the power to alter and abolish their forms of government as they pleased. And this is precisely what they did in 1776, 1788, and again in 1860.

I laugh at the idea that anything in the Articles of Confederation was “an iron-clad law.” Again, the Articles of Confederation had no method of enforcement. It was a little league, a United Nations of North America, and had scant authority. As I said earlier, the Framers had such little regard for it they completely exceeded their authority in Philadelphia and drafted a new Constitution. and what did this Confederation Congress do, when these men thumbed their noses? Did they accuse the Framers of treason? Did threaten to bring them up on charges? Hardly. They grumbled, and then passed the document on to the states, as recommended.

The “first principle” of the Framers was popular sovereignty. And they knew damn well that the states would hinder them. So, they did an end-around, and appealed to the People directly.

Nice try, slipping in the “1860” thing. That attempt to dissolve the Union was illegal, for all the reasons I’ve laid out, and it was put down.

“If the Constitution is merely a compact among the states, why is there an explicit ‘supremacy clause’ (Article VI, Clause 2), explicitly elevating federal law over state law?”

This question too harms you, and very badly. First off, the Supremacy Clause is a vitiated version of the constitutional provision Madison desperately wanted, and was refused by the convention. More specifically, Madison contended for a provision which would have given the Congress the authority to completely veto state legislation. Madison lost this battle on July 17, and had to settle for the Supremacy Clause. And the Supremacy Clause most certainly does not “explicitly elevate federal law over state law”. Rather, the clause properly delineates the scope of authority of both state and federal law. Laws, both federal and state, are valid only insofar as they are made in pursuance of the constitution. And make no mistake about it, the Supremacy clause operates every bit as much in support of the tenth amendment as it does it support of any other provision in the constitution.

Your point that Madison’s original draft (the “Virginia Plan”) had an absolute veto–a “negative” Madison called it–is irrelevant. I never claimed otherwise. It’s called “federalism.” My point is that the federal government is explicitly superior to the states.

I will say I’m surprised at you using Madison to support your position. You have tried two or three times now to use his words to support your “compact” notion—to no avail. So, I would suggest you just hurt your other arguments by mentioning that Madison wanted an even more powerful federal government than he got. And you still have not explained why Madison would say to Hamilton that “[t]he Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States.”

“If the Constitution is merely a compact among the states, why are state officers required to swear an oath to uphold the U.S. Constitution (Article VI, Clause 3), but federal officers not required to swear an oath to the states?”
Complete non-issue, Read Federalist 27, and Hamilton will walk you through it. It’s actually one of Hamiltons’ less quodlibetic and more pragmatic essays.

Not irrelevant. No-one swears an oath to uphold an agency. Yet the compact theory maintains that is exactly what the Constitution creates: an agency to take care of functions that the states themselves can’t. In short, if the federal government is not sovereign, as you maintain, why should anyone from the states be compelled to swear an oath to up hold it? Rather the reverse: if the states were absolutely sovereign, as you maintain, then federal officials should be swearing an oath to defend the states. Yet they don’t.

Hamilton read the letter [from Madison] aloud to the convention and then added his own words. The “terms of the constitution import a perpetual compact between the different states…. The [Article VI] oath to be taken stands in the way” of any subsequent right of unilateral secession.

So, clearly, Hamilton saw the oath very relevant. Amar continues:

According to the contemporaneous account published in New York’s Daily Advertiser, both Hamilton and his fellow delegate John Jay insisted that “a reservation of a right to withdraw . . . was inconsistent with the Constitution, and was no ratification.”

Here are the men who were elected by the to argue and vote on the Constitution. And they are arguing secession is not part of the formula.

Federalist #27 is irrelevant here. You recommend documents, but you never explain their significance.

At this point, I have addressed nearly all of your points. You may not agree with my arguments—I may not have convinced you—but that’s pretty much it. I’ll leave it to the readers of the blog to decide who won this debate. Thanks for the discussion.

PS–In the future, I do recommend though that you really read the blog posts if you want to argue against my points. Simply commenting without inquiring into the argument is tedious.

Chris,
With all due respect, you have addressed none of my points, and truthfully, it is not possible for you, or anyone, to do so honestly. Additionally, there is in fact no debate, because all of the facts are with me. To advance your cause, you offer a nothing but a collection of desultory and addlepated information, all of which is dubious, tentative, and oneiric. You offer absolutely no conclusive proofs whatsoever. You cannot, for example, go directly to the constitution to support your egregiously false claim that the people, in the aggregate and on a national basis, ratified the constitution (a model and idea that was offered to, and FLATLY REJECTED by, the convention). Whereas MY FACTUAL ASSERTION that the States ratified the constitution is easily, effortlessly, firmly, and thoroughly supported by the explicit language of Article VII. And for the last time, Article VII unequivocally, and with perfect exactitude, announces the irrefutable fact that our union is a union of states. This is proven beyond dispute because the constitution expressly states that the ratification was “BETWEEN THE STATES SO RATIFYING” (not “between the people so ratifying”). Moreover, the Constitution repeatedly, repeatedly, declares that our country is a union of states by its endless references, all of them clear, bold, and precise, to the “United States”; there is not so much as even a single reference to the “United People” in the entirety of the Constitution. Not a single one. Then of course, there is the OFFICIAL AND LEGAL name of our country, “The UNITED STATES of America”. Like Article VII, the very name “UNITED STATES” (not United People), screams out to all the world, again with perfect exactitude, that our country is a union of states(hence the name “United States”). By any honest consideration, that should be the end of it. Yet still you persist. Despite the mastodoni mountain of historical facts which directly contradicts you, and despite the clear and explicit language of the constitution, which literally stares you in the face, you declare that our country in a union of the people in the aggregate. How you do it in clear conscious, I do not know. “BETWEEN THE STATES SO RATIFYING”. “BETWEEN THE STATES”

Likewise with the law of perpetuity. You openly concede that under the constitution there is no explicit law declaring the union of states to be perpetual. You also concede that there is no pledge of perpetuity in even so much as a single one of the STATE RATIFICATIONS. Again, by any honest accounting, because neither the constitution itself, nor any of the States that ratified it recognize a law of perpetuity, there is no such law and that is the end of it. Madison, you say, claimed that the ratifications were executed “in toto and forever”? Ignoring, for the moment, the fact that Madison also stipulated that the Union could be both renounced and abolished, please show me the words “in toto and forever” in either the constitution or the State ratifications. Hamilton, you say, declared that the Union was perpetual? I laugh at that idea. Ignoring, for the moment, the fact that Hamilton, in 59, fully acknowledged the right of secession by explaining “It is certainly true that the State legislatures, by forbearing the appointment of senators, may destroy the national government”, once again, please show me a law of perpetuity in the Constitution or any of the State ratifications to support that claim. You seem to confuse what you claim both Madison and Hamilton may have wanted the constitution and ratifications to say, and what they actually did say. And it is what they actually did say that constitutes the law.

Now then, since you persist with this nonsense regarding the Article VI oath, I must tell you that the notion that the Article VI oath to support the constitution somehow precludes secession is a risible absurdity. If anything, and like the Supremacy Clause, it firmly cements the right to secede, because secession is perfectly lawful under the Constitution. More specifically, an oath to support the constitution is, among other things, an oath to support the fact that it was the States who ratified the Constitution, and therefore it is the States who may secede from it. It can’t be read any other way.

You also claim that Jay and Hamilton said:

““a reservation of a right to withdraw . . . was inconsistent with the Constitution, and was no ratification.”

Yet that is exactly what New York did by providing, in her ratification:

“That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness…”

So much for Hamilton and Jay on that score.

This is indeed tedious, but regarding Fletcher, McCullough, Cohens, and Gibbons, it is only necessary to repeat that in not one of those cases was the question of right of a State to secede before the Court. Not a single one of the cases. Or am I mistaken in that? Please Chris, do tell me, which State asserted a right to secede, and was denied the right, in Fletcher? In McCullough? In Cohens? In Gibbons? So that’s that.

I will leave you with the words of William Rawle, an early Constitutional Scholar, who served as a United States Distric Attorney. appointed by none other than George Washington. In Chapter 32 of his magnificient work, “A View of the Constitution” he writes:

” It depends on the state itself to retain or abolish the principle of representation, because it depends on itself whether it will continue a member of the Union. To deny this right would be inconsistent with the principle on which all our political systems are founded, which is, that the people have in all cases, a right to determine how they will be governed…. The states, then, MAY WHOLLY WITHDRAW FROM THE UNION…

PS- Madison wrote, in Federalist 40 : ““We have seen that in the new government, as in the old, the general powers are limited; and that the States, IN ALL UNENUMERATED CASES, are left in the enjoyment of their SOVEREIGN AND INDEPENDENT JURISDICTION”

Please note Madison did not write: “We have seen that in the new government, as in the old, the general powers are limited; and that the States, IN ALL UNENUMERATED CASES, EXCEPT SECESSION, are left in the enjoyment of their SOVEREIGN AND INDEPENDENT JURISDICTION”

This “implied” law of perpetuity is unsupported nonsense. Indeed, it is little more than yelling “The Emperor Has No Clothes”. It is painfully, woefully, inadequate.

It’s not that I “believe this”, but rather, that the facts of the case so overwhelmingly say so. As in “Between the States”. What I do “believe” in, is the right of a free people to their own political self-determination. Like what the Founders believed in. And you are welcome.

I’m sure you believe what you think. The fact that no one else believes what you think, that it is rejected by modern scholars of all kinds, and was rejected by the people that actually wrote the Constitution to include Mr. Madison whom you quote well out of context should tell you something. Specifically that you are wrong. But I’m sure you will continue to think you are right.

Except for the rather obvious fact that the people who actually wrote the constitution had first seceded from the British Empire and then, in order to establish the constitution itself, were compelled to secede from the AoC. And they seceded from the AoC despite its air-tight, iron-clad law of perpetutiy and unanamity. Here it is:

“Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union SHALL BE PERPETUAL; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State”.

So much for perpetuity, huh?

And lol with the “out-of-context” nonsense. Each and every time something for which you have no answer stares you in the face, it is suddenly “out-of-context.” I sneer at such “accusations” and treat them with complete disdain and utter contempt.

Lol..a line out of the Brooks Simpson playbook. By the way, I just watched an hour long video of an Akhil Amar speech at Indiana University. What a clown. He was promoting his book “The Unwritten Constitution”. What I found riotously funny, was the fact that Amar wrote 640 pages of text, to explain how utterly irrelevant text is. Still laughing about how absurd that is.

I believe the response of “I’m sure you think so” applies to the latest broken record skipping from Caldwell. The fact that he has been corrected on the rest of the blogs and still manages to keep repeating himself indicates a serious psychological problem. His failure to learn is alarming. It could be Developmental Receptive Language Disorder, but that’s usually found in younger children. Assuming he is an adult (major assumption, I know!) we should consider whether this disorder is a genetic one or one by choice.

When was this? I’m amused you think you know something when you’ve been proven wrong by so many people. I believe that is willful ignorance on your part. What does your psychologist say about your delusions?

“”The Union was formed by the voluntary agreement of the states;
and these, in uniting together, have not forfeited their nationality,
nor have they been reduced to the condition of one and the same people.
If one of the states chooses to withdraw from the compact,
it would be difficult to disapprove its right of doing so, and
the Federal Government would have no means of maintaining its claims
directly either by force or right.”

Jimmy, you sound like a narrow-minded xenophobic bigot. Also, when you write something even remotely approaching the depth and erudition of “Democracy in America” you can talk. Until then, you just keep on scribbling that worhtless “Saber and Scroll” gibberish that no one will ever read, let alone be used for instruction at the Univeristy level 200 years from now. You are some piece of work kiddo.

Still in denial? What translation are you using? You are aware of the controversy over it are you not? Of course, if you understood what context was, then maybe you understand why that work gets referenced a lot by historians.

Context. C-O-N-T-E-X-T; A malleable term which enables an ideologue to ignore and disregard facts and words that do not conform to his or her preconceived agenda by claiming those facts and word are “out-of-context”. Context.

Jimmy’s points are valid. First, it is quixotic in the extreme to put forward as a source on the Constitution the casual observation of a foreign tourist, while rejecting four separate Supreme Court decisions by a man who lived through the period. Marshall’s opinions carry infinitely more weight than De Tocqueville’s as a contemporary source interpreting the Constitution.

Second, it is customary when using a source like De Tocqueville that you cite the edition and page number of the quote so that others can go back and confirm that the source exists, and that it exists in the form offered. As it stands, I can’t accept your De Tocqueville quote on its face because I can’t go back and see for myself the context in which he wrote it. And, alas, I’m forced to go back and confirm your sources, Colleen, because you have consistently used other contemporary quotes totally out of context, thus changing their meaning. I mean, you’ve just mangled poor Madison in these comments more times than I can easily recall!

You can continue to mock the notion of context and ignore its implications, but that only undermines your credibility. If you want to know a major reason “Unionist” bloggers refuse to honor your comments, chief among them is your scorn of context.

Sorry Chris, but you are tilting at windmills. And really, for a decidated adherent of Akhil Amar, you sure do seem to cling fastidiuosly to text. It’s bizarre. With one breath, you insouciantly and superciliously dismiss any and all text which contradicts your position, and then, quite hilariously, with the next breath, you demand rigiorous adherence to the rules of citing text. And why, for heaven’s sake, do you insist on quoting text (text of all things!) from four court cases which have absolutely no bearing upon the point being discussed.

PS- I couldn’t give two chits whether Unionist bloggers “honor” my comments. I know perfectly well I do not honor theirs. I also don’t give two chits whether or not you “accept” the de Tocqueville quotes, or if you have ever even bothered to read “Democracy in Amercia”.

Hmmm. You exhibit here and elsewhere a strong tendency toward concrete thinking, which is unfortunate. History is a fascinating subject, but it is very difficult to comprehend–let alone fully appreciate–with such a crippling deficit. You have my sympathies.

lol..you mean “concrete thinking like a strict adherence to obsolete rules of citation? This is the electronic age of information Chris, just “google” the de Tocquevillle quote. lol “concrete thinking”.

Let’s see, you’ve been schooled on at least six blogs that I know of by more than six people who are far smarter than you. Yet, the only thing you can do is repeat yourself and your claims after you have been proven wrong each and every time. You reject any facts that contradict your claims and reject the interpretation of the US Constitution as it is known by. I’d say that is a serious psychological problem that you need to seek help for.

You are in the company of the Von Mises folks who write their history to suit their beliefs and can’t understand why no historian takes them seriously. I really hope you seek professional help, Caldwell. I feel sorry that you have to go through life in such a deluded state.

Very well said.
I dare say your debating back and forth in the comment section was as important as the original post itself.
I’m glad that you chose to take the fight to this end of the spectrum. One can’t simply use supreme court cases against a neo-confederate because they like to undermine the supreme court and they think that because its part of the fed govt that it discredits their rulings.
In my opinion a post like this is hitting them where it hurts. Glad I found this on Al’s blog.

Jason,
this particular individual on this thread is a fanatic who keeps repeating the same stuff over and over again while rejecting everything that proves him wrong. People like him are not interested in anything except what they want to believe in. History for them exists only to the point where it validates their modern beliefs. Any other history is to be rejected in their view.

He pops up on many of the boards under different names quite a bit. He and the neos are pretty much a waste of time.

Well said, and although I agree, I only think its a waste of time if you have the knowledge that you, or al, or mr shelley have. Those people are few and far in between. For others, he is quite convincing for obvious reasons. For a more impressionable individual he is extremely dangerous and has very effective brainwashing methods and its obvious that he is no slouch in designing his case, regardless of the fundamental and obvious flaws you all point out, it is well presented. That is why a post like this is important to me, as are the responses to the comments.

There are many good Civil War blogs, but for finding interesting sources, Al’s blog is great. And to find comment sections with excellent arguments I recommend Al’s of course, Kevin Levin’s Civil War Memory, and Brook Simpson’s Crossroads.